Citation Nr: 21013498 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 20-23 862 DATE: March 9, 2021 ORDER Entitlement to service connection for an aortic aneurysm, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for stage three chronic kidney disease, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for polycystic kidney disease, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for a stroke, to include as due to exposure to contaminated water at Camp Lejeune, is denied. REMANDED Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. FINDINGS OF FACT 1. An aortic aneurysm did not manifest in service and is not otherwise attributable to service. 2. Stage three chronic kidney disease (“nephritis”) did not manifest in service within one year of separation from service. Stage three chronic kidney disease is not otherwise attributable to service. 3. Polycystic kidney disease (“calculi of the kidney”) did not manifest in service or within one year of separation from service. Polycystic kidney disease is not otherwise attributable to service. 4. A stroke (“brain thrombosis”) did not manifest in service or within one year of separation from service. A stroke is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an aortic aneurysm have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for stage three chronic kidney disease have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. 3. The criteria for entitlement to service connection for polycystic kidney disease have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. 4. The criteria for entitlement to service connection for a stroke have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corps from October 1971 to November 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board has recharacterized an issue as an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, in consideration of the applicable evidence of record and the benefits sought. The United States Court of Veterans Appeals (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection The Veteran contends that the four disease entities, as reflected above, were incurred in, aggravated by, or otherwise attributable to active duty service. The Veteran further advances that these four disease entities were caused by exposure to contaminated water at Camp Lejeune. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases—to include nephritis of the kidney, calculi of the kidney, and brain thrombosis—may be presumed to have been incurred in service, if they become manifest to a degree of 10 percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. Effective March 14, 2017, a Veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987 shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). If a veteran served on Camp Lejeune during the time frame specified, certain diseases including kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(f). A review of the Veteran’s military personnel records confirms that he had service at Camp Lejeune during a period of time set forth in 38 C.F.R. § 3.307(a)(7). Evidence and Analysis In May 1972, a clinician diagnosed a syphilitic chancre on the Veteran’s scrotum. In a November 1972 service treatment record (STR), a clinician indicated that the Veteran was struck accidently in the left orbital region. The Veteran endorsed pain upon movement of his left eye, as well as a headache. The clinician noted that, while a mild hematoma was present, the left orbit seemed intact with no point of tenderness. A January 1973 STR notes that the Veteran consulted with a urologist. A clinician indicated that the Veteran complained of an inability to release sperm (semen). The clinician reported that there was no evidence of a disability, to include neurosis, psychosis, organic brain disease, or depression. In a February 2007 initial evaluation, a VA physician provided a diagnosis of degenerative joint disease; facet syndrome; cervical, thoracic, sacrum, and pelvic subluxation. Otherwise, this physician indicated no apposite diagnoses. An August 2008 trauma center record from U., a private treatment facility, reveals that the Veteran complained of chest and abdominal pain. He characterized the pain as aching and burning. He was admitted for one day at the facility; the admitting diagnoses were chest pain; abdominal pain; hypertension; history of osteoporosis; tobacco abuse; and history of illicit drug use of crack cocaine. Discharge diagnoses included non-cardiac chest pain; abdominal pain resolving; illicit drug use, cocaine and barbiturates; hypertension; tobacco. abuse; history of gastritis; and history of osteoporosis. A treatment record from this same month disclosed a diagnosis of polycystic kidney disease and elevated creatine kinase. Sonographic evaluation showed multiple bilateral renal cysts of varying size. U. clinicians indicated that the Veteran endorsed a family medical history of cerebrovascular accident. Contemporaneous private treatment records from V. are largely reflective of those from U. Again, sonographic evaluation disclosed multiple bilateral renal cysts. In January 2009, VA received a batch of private medical records from S., a private health facility. Dating from August 2008, these records disclose that the Veteran was admitted to S. with diagnoses of chest pain (rule out acute coronary syndrome); hypertension; benign prostatic hypertrophy; bradycardia, and back pain. A clinician indicated that the Veteran endorsed difficulty with urination. As to the Veteran’s medical history, the clinician opined that smoking was a risk factor for coronary artery disease, congestive heart failure, and abdominal aortic aneurysm. A review of VA progress notes shows that the Veteran has been prescribed medication for blood pressure, heart, or kidneys. In a January 2012 VA mental health crisis intervention note, a clinician noted the Veteran’s report that, if he sneezes in the wrong way or coughs in the wrong way, his aneurysm will burst. The Veteran also conveyed that his aneurysm was of such enormity that the possibility of operating was not possible. A June 2013 VA occupational therapy note mentions that the Veteran has impaired coordination and manipulation abilities both due to recent fractures and a stroke. In an October 2015 VA physical therapy (PT) note, a clinician reported that the Veteran had a stroke about a year earlier. In a December 2016 VA comprehensive social work assessment, a social worker indicated that the Veteran did not have kidney disease or end-stage renal disease or stroke. A February 2017 renal sonogram performed at D., a private facility, provided impressions of polycystic kidneys; increased renal parenchymal echogenicity, suggestive of medical renal disease; and infrarenal abdominal aortic aneurysm. 2017 treatment records from U. disclose that the Veteran sought consultations and clinical evaluations of the status of polycystic kidney disease; chronic kidney disease; and abdominal aortic aneurysm. Clinicians reported that the Veteran had a history of stroke. The Veteran conveyed that one sister had a brain aneurysm and myocardial infarction. Another sister had three strokes. As of 2017, the Veteran’s VA treatment active problems, among a host of other issues, include aphasia as late effect of cerebrovascular accident and dysphagia as late effect of cerebrovascular accident. The Veteran’s representative submitted a writing in March 2018. In pertinent part, the representative elucidated reasons for disagreement with the rating decision on appeal. Otherwise, the representative submitted a multitude of legal citations with no analysis of how these citations apply to the facts of the Veteran’s psycho-medical history. June 2018 records from SDMI, a private diagnostic facility, indicate that the Veteran has polycystic kidney disease. July 2018 test forms from K., a private facility, provide diagnoses of abdominal aortic aneurysm; polycystic kidney disease; and stage three chronic kidney disease. In March 2020, the Veteran was afforded a VA opinion. A clinician performed an exhaustive review of the evidence of record and rendered an opinion as to the etiology of the Veteran’s stage three chronic kidney disease. Notably, the clinician’s respective opinions were supported by rationales—replete with supporting evidence and citation to peer-reviewed epidemiological and medical literature. As to stage three chronic kidney disease, the clinician opined that this disease was not caused by, or the result of, the Veteran’s exposure to contaminated water at Camp Lejeune. As a rationale for this negative etiological opinion, the clinician noted that isolated epidemiological studies, occupational marker studies, and animal studies, have found that the chemical agents found in the chemical agents in contaminated water (at Camp Lejeune) has an association with the incidence of kidney disease, However, upon review of the specificities of the Veteran’s medical history, there are far-more-likely factors that explain causation. Here, the clinician underscored that the Veteran had risk factors of hypertension, high-lipid disorder, cigarette smoking and substance abuse. Within this network of risks, the Veteran’s exposure to contaminants in the water at Camp Lejeune was brief. Whereas, the risk factors, as noted above, were most likely the cause of the Veteran’s stage three chronic kidney disease. The clinician’s opinion is also supported through a disquisition of 30 separate studies. As neither aortic aneurysm, stage three chronic kidney disease, polycystic kidney disease, nor stroke are diseases presumed to have been caused by contaminated water at Camp Lejeune under 38 C.F.R. § 3.309(f), service connection is not available on that presumptive basis. This, however, does not preclude establishing service connection due to exposure to contaminated water at Camp Lejeune on a direct basis. See Combee, supra. However, other than the Veteran’s lay contentions, the weight of evidence fails to establish any etiological relationship between aortic aneurysm, stage three chronic kidney disease, polycystic kidney disease, and stroke and the Veteran’s exposure to contaminated water at Camp Lejeune. The Board finds that neither the Veteran nor his representative has submitted evidence to support this theory of causation. Here, the Board informs the Veteran and reminds his representative that a claimant still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F. 3d 1346 (Fed. Cir. 2006). The Veteran contends that aortic aneurysm, stage three chronic kidney disease, polycystic kidney disease, and stroke were incurred in, aggravated by, or otherwise attributable to, active duty service. The Board recognizes the Veteran’s belief in these theories of etiology and causation. Nevertheless, as a lay person, this Veteran lacks the highly specialized medical training to render complex medical opinions as to etiology or causation. See Jandreau, Bostain, both supra. As such, these lay contentions as to etiology warrant highly diminished probative weight. The present disability prongs of these four disease entities are present. However, the weight of evidence fails to establish in-service incurrences. The Veteran’s STRs disclose no incurrence of aortic aneurysm, stage three chronic kidney disease, polycystic kidney disease, or stroke. Without in-service incurrences or predicates, nexuses cannot be drawn; without nexuses, service connection cannot be established on a direct basis for any the Veteran’s for these four disease entities. See Shedden, supra. Moreover, the evidence of record fails to disclose that stage three chronic kidney disease, polycystic kidney disease, or stroke were diagnosed within one year of the Veteran’s separation from service. This forecloses the possibility of granting service connection on a presumptive basis. See 38 C.F.R. §§ 3.307(a), 3.309(a). The Veteran has not been provided with a VA examination and request for a medical opinion on the issue of causation for aortic aneurysm, polycystic kidney disease, or stroke. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, conclusory generalized lay statements that a service event or illness caused the claimant’s current condition (or lack thereof) are insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (2010). The weight of competent and credible evidence is against the Veteran’s four service connection claims; there are no doubts to be resolved. See 38 U.S.C. § 5107(b); Gilbert, supra. REASONS FOR REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression In August 2018, VA received a copy of a private clinician-consultant’s mental health assessment. As the RO noted in the March 2020 statement of the case (SOC), this assessment is not signed and largely reflects the Veteran’s subjective endorsements. See March 23, 2020 SOC, p. 26. However, the consultant did derive a diagnosis of major depressive disorder, recurrent, unspecified. And, the consultant did include an account of the Veteran’s symptoms and behavioral goals. While the Board finds this assessment to be of highly limited probative weight, it still is suggestive of an acquired psychiatric disorder. Upon review of the Veteran’s heft of VA treatment records covering a period of well-over a decade, there are extensive clinical notations concerning an extensive inventory of psychiatric symptoms. In October 2009, a VA social worker noted an admission for mixed anxiety and depression with incipient suicidal ideation. At this time, the evidence also suggests that the Veteran experienced auditory hallucinations. VA treatment records are also replete with polysubstance dependencies and ameliorative treatment. And, the Veteran’s VA active problems, as of 2017, discloses on-going active problems of mood disorder, hallucinations, and major depressive disorder. In various lay accounts, the Veteran has conveyed that incidents in service played a role—along with issues of unemployment, homelessness, and crack cocaine—within the “constellation” of his psychiatric disability. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. Id. The Board recognizes that the evidence of record presents a complicated overall picture of the Veteran’s claimed psychiatric disability. However, even within this context, the Board finds that the third prong of McClendon has been triggered. As the private consultant’s assessment is of nominal probative value, the Board finds that a VA mental health examination is necessary for the Board to make a fully informed decision on the Veteran’s acquired psychiatric disorder claim. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) The matters are REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide or identify and authorize the recovery of any additional mental health treatment records. If obtained, associate these treatment records with the claims file. 2. Obtain and associate any updated VA treatment records with the claims file. All records/responses received must be associated with the electronic claims file. 3. Arrange for a VA mental health conditions examination with a psychologist or psychiatrist. All necessary psychometric testing and interviewing should be conducted. The evidentiary record must be made available and reviewed by the provider. Such a review must be indicated within the body of the examination report. The Board specifically requests that the provider reconcile any opinion with findings in the 2018 private clinician-consultant’s mental health assessment. Additionally, the Board requests that the provider consider VA clinicians’ reports of mixed anxiety and depression with incipient suicidal ideation; auditory hallucinations; polysubstance dependencies; mood disorder; and major depressive disorder Upon completion of these tasks, the provider is asked to render opinions as to the following inquiries: a. What mental health disorder(s) is apposite to the Veteran, if any? AND b. Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s mental health/acquired psychiatric disorder(s), if any, was incurred in, aggravated by, or otherwise attributable to the Veteran’s active duty service? For all opinions expressed, complete rationales should be provided. The provider must reconcile any opinion with all other clinical evidence of record and the Veteran’s and other lay evidence. The Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the provider rejects the Veteran’s reports, she/he must provide an explanation for such rejection. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.